File talk:Coat of arms of Canada (1923).jpg

 

Nomination for deletion

• All of the official secondary and primary sources state that 1) the Arms are today, in 2013, fully protected by the Copyright Act (including the design from 1921, and the 1952 and 1994 revisions), and 2) the use of images or derivative images in the likeness of the Arms, or so closely resembling as could be construed as a substitute for the Arms, regardless of generator, cannot be 'freely' used without authorisation as they continue to be fully copyrighted. Wikipedia Commons policy states that Arms are to be assumed to be copyrighted until proven otherwise, that the burden of proof is on those wishing to keep the image on the commons, that self-made coats of arms copied or completely drawn by a user cannot be uploaded to the Commons until a lack of copyright is decisively proven, and that in the case where the copyright status is ambiguous, Administrators are to remove the image in question. All sources and relevant policies are outlined below:

Official, secondary, and primary sources:

• The Government of Canada has pressed charges for companies using 'likenesses' of the Arms for commercial use without permission, as can be seen here, "He tried to argue that he had changed the image significantly, and should be allowed to use it. No way, the federal lawyers said. 'They waited a few months, contacted me again, and said that they'd be pressing charges'".

• From the Copyright Act, section 12:

"Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year. [S.C. 1993, c. 44, s. 60(1)]" The Arms are not created by the government or by Parliamentary action, but as the Queen of Canada's personal Arms, are under the personal prerogative of the Crown, and beyond legislative restrictions.

• From the Interpretation Act (R.S.C., 1985, c. I-21), section 17:

"No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment." In the case above, the Copyright Act does the opposite by stating that it specifically does not impinge on the sovereign’s "rights or privileges".

• From the Copyright Act, section 29.21 - Non-commercial user-generated content:

"(1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists...if"

"...the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one."

If the copy is so poor a depiction as it could not be construed as a satisfactory replacement image for any of the Arms used by Canada, then what's the point in having it at all? In addition, it would certainly be a grey area as what, exactly, is the threshold test used by the Crown to determine at what point an image of the Arms would be considered as a "potential substitute", and what constitutes "new work". Regardless, choosing an interpretation ourselves is conjecture and unfit for an encyclopedia, and ambiguity is grounds for deletion itself, in accordance with the Commongs policy below.

• From Treasury Board of Canada Secretariat:

"The official symbols of the Government of Canada are protected under the Trade-marks Act and the Copyright Act and cannot be used or reproduced without authorization.". The official symbols being, "Official government symbols: Arms of Canada as revised in 1994, Government of Canada signature, Canada Wordmark, Arms of Canada as designed in 1921 and revised in 1957, flag symbol, and federal emblem used from 1974 to 1987." The TB Secretariat is the agency that administers, protects, and governs the use of the Arms of Canada, and so is the official source, which clearly states that these symbols are 'protected under the Copyright Act'.

In addition, as specifically stated in the Copyright Act and the Interpretations Act above, nothing can remove the prerogative of the Crown to enforce whatever standards it sees fit in the protection of its personal property under the Copyright Act.

• From Government of Canada Publications - About Crown Copyright

"When permission is required: Permission is always required when the work is being revised, adapted, or translated regardless if the purpose of the reproduction is for personal or public non-commercial distribution, or for cost-recovery purposes."

• Ryerson University Library General Questions

"If you wish to adapt, translate, or revise Crown material you must obtain copyright clearance."

• From The Invisible Crown by David E. Smith

"Although the Crown prerogative copyright has been cited in many judicial opinions, it has not been judicially tested, so its nature and extent are not certain. It is known, however, that this exclusive right to certain works by prerogative amounts to a perpetual term of copyright protection."

• From an essay by David Vaver, who is a copyright Professor and lawyer with Oxford University and Osgoode Hall Law School (and also against Crown Copyright):

"The right (Crown prerogative copyright) is conveniently said to be perpetual (so it would cover statutes long ago repealed) and not to lapse through non-use or non-assertion"

"The government should no longer assert, through the royal prerogative, perpetual copyright..."

• Irrevocable licences of copyright exist in Canada under Crown prerogative as you can see here in this contract, although very rarely used.

• Berne Convention article 2 (4, 6):

“(4) It shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.” and,

“(6) The works mentioned in this article shall enjoy protection in all countries of the Union. This protection shall operate for the benefit of the author and his successors in title.”

• Berne Convention section 7 (6, 8):

“(6) The countries of the Union may grant a term of protection in excess of those provided by the preceding paragraphs.” and,

“(8) In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.”

Relevant Wikipedia Policy

• Wikilegal:Flags and Logos:

“A published work is subject to protection under U.S. copyright law if, on the date of first publication, one or more of the authors is a 'a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party' Thus, regardless of the geographical location of where a work is published, the work is eligible to receive copyright protection in the U.S. as long as one of the creators of a work is from a 'treaty party.' The term 'treaty party' refers to 'a country of intergovernmental organization other than the United States that is a party to an international agreement.' Those agreements include the Berne convention and the Universal Copyright Convention, amongst others.”

• From WP:NFC:

"free content defined as content that does not bear copyright restrictions on the right to redistribute, study, modify and improve, or otherwise use works for any purpose in any medium, even commercially. Any content not satisfying these criteria is said to be non-free. This includes all content (including images) that is fully copyrighted, or which is made available subject to restrictions such as "non-commercial use only" or "for use on Wikipedia only". (Many images that are generally available free of charge may thus still be "non-free" for Wikipedia's purposes.)"

• COM:COA:

COM:COA, contrary to some editors’ opinions, does not say that COA are free-use in all cases, nor does it state that "Copyright for coats of arms is never absolute". What COM:COA does state though, is that "definitions are public domains in almost all cases" (not all), and that "CoA definitions indeed claim copyright, but this is very rare".

• COM:CB:

"You should assume that a coat of arms drawn by someone else is copyright-protected unless you can demonstrate to the contrary. Even if the elements making up the arms have been used for hundreds of years, each specific realization may have sufficient originality to attract copyright protection. Direct copies of such specific realizations cannot therefore be uploaded even if you have taken the trouble to trace or even re-draw the design yourself".

So, according to Commons policy on coats of arms, copyright should be assumed, images created or drawn by a user themselves are still subject to copyright, and the burden of proof is on the person stating that there is no copyright, not the other way around. Thus, if following the accepted practice here with regards to COA, it must be conclusively shown through proper and official sources that there is no copyright.

Even though the burden of proof is not on the party wishing to delete the image, official sources have been shown anyways, which are clear in that the '1921 design is copyrighted along with all revisions', and that "If you wish to adapt, translate, or revise Crown material you must obtain copyright clearance".

• COM:TO:

As quoted in CCH Canadian Ltd. v. Law Society of Upper Canada “explicitly rejected the ‘sweat of the brow’ doctrine for being too low of a standard”: “A creativity standard implies that something must be novel or non-obvious — concepts more properly associated with patent law than copyright law. And for these reasons, I conclude that an “original” work under the Copyright Act is one that originates from an author and is not copied from another work”.

• COM:DR

"If the closing admin is unable to say with reasonable certainty that the file can validly be kept it should be deleted in accordance with Commons' precautionary principle", and "Under the rules of evidence we apply here, the burden of showing that the file can be validly hosted here lies with the uploader and anyone arguing that it should be kept".

From the overwhelming amount of sourced evidence presented here, as well as the very clear Commons policy, it is clear that this image is eligible for deletion.

Even if WP did allow for the use of these copyrighted COA, which it does not, unofficial Wikipedia policy does not trump national and international copyright law.

Trackratte (talk) 10:41, 1 July 2013 (UTC)

Additional Commentary/Discussion

For fuck's sake will you even try and read our copyright policies and grasp the complex rules regarding them? Your understanding of copyright is so horribly crude we would have to delete every country's coat of arms we have here. Fry1989 ^eh? 15:40, 1 July 2013 (UTC)